Environmental crime in the UK is not just an environmental issue, it’s increasingly being recognised as a serious public and economic threat.
From illegal dumping to pollutive sewage spills, regulators are ramping up enforcement amid rising public concern. At the heart of much of this enforcement action lies strict liability. This is where organisations and individuals can be held accountable without proof of intent or negligence.
To put the rising scale of the problem of environmental crime into context, between January 2023 and December 2024 the Environment Agency received 16,773 reports of suspected waste crime (spanning fly-tipping, unlicensed waste sites, and unlawful waste handling) across England with spikes in the West Midlands, Yorkshire, and East Anglia.
Alarmingly, these crimes are estimated to cost the UK economy around £1 billion this year. More alarmingly, it’s believed only around 25% of offences are actually reported. This means the true scale is almost certainly be far greater.
Waste is not the only area of environmental crime causing concern. Water companies are also under scrutiny. Since July 2024, the Environment Agency have launched a record 81 criminal investigations into sewage permit breaches. These include major incidents involving Thames Water and Anglian Water.
The common factor is that strict liability is central to all this enforcement activity.
In environmental crime, what is strict liability?
Strict liability applies across a range of environmental crime, including:
- Tree Preservation Orders
- Illegal waste disposal and failure to comply with permit conditions
- Water pollution
As such, a strict liability environmental offence is a type of legal violation in environmental law where a person or organisation can legally be held responsible for causing environmental harm regardless of whether it arose because of intent or negligence.
This means that unlike other types of offences, the prosecution does not need to prove that the accused meant to cause harm or was careless. It is enough simply to be able to show that the prohibited act occurred and the accused was liable for causing or allowing an environmentally harmful act – like pollution or illegal waste disposal – to happen.
Common examples of strict liability environmental offences include:
- Discharging pollutants into water without a permit
- Improper handling or disposal of hazardous waste
- Violating emissions standards
- Causing harm to protected species or habitats
Why is strict liability used to prove and prosecute environmental crime?
There are several reasons strict liability is so common in instances of environmental crime.
Firstly, as we’ve seen instances of environmental harm are increasing. This means stronger deterrents are needed and the fact that strict liability simplifies criminal prosecution by removing the need to prove intent or negligence. This should provide this stronger deterrent as it makes it easier to mete out financial and custodial penalties. It should also encourage companies and individuals to be more proactive in taking measures to prevent environmental harm.
The penalties for strict liability environmental offences can be severe, designed to reflect the serious harm environmental crime causes. These penalties will vary depending on the jurisdiction and the specific offence, but typically they would include:
- Significant fines depending on the severity of the harm and whether it involves a first or repeat offender.
- Remediation Orders forcing offenders to clean up the damage they have caused and provide compensation for harm caused.
- Criminal convictions with the accompanying criminal record.
- For serious cases, especially those involving repeat offenders or large-scale harm, the individuals involved (including company directors viewed as liable) may face prison sentences.
- The suspension of certain regulatory licences or permits which would disrupt the offender’s operations.
What should you do if you are accused of committing a strict liability environmental offence?
In the UK, defending an allegation of committing a strict liability environmental offence is challenging. This is primarily because the prosecution does not need to prove intent or negligence, only that the prohibited act occurred.
However, defences are still available, especially if they are provided under statute or can be argued on procedural grounds.
You could look to prove you undertook the required due diligence.
Many environmental statutes (such as the Environmental Protection Act 1990 or Environmental Permitting Regulations 2016) allow a statutory due diligence defence. This would involve being able to show you took all reasonable precautions and exercised all due care to prevent the offence. This includes (but is not limited to) utilising the proper environmental management systems, training and supervising your staff, conducting and taking immediate corrective action as soon as the alleged incident arose.
Alternatively you could claim ‘No Actus Reus’ (literally translating as “there is no crime”) by arguing that the alleged act either did not occur or did occur but was not committed by you or your company. As this is a factual defence, you would need to be able to challenge the prosecution’s evidence and prove, for example, that any discharge levels were within permitted limits, that you have been wrongly identified as the source of pollution or the alleged waste site had actually been lawfully registered.
You could argue that the offence had been caused by a third party and you had no knowledge of their actions, and no reasonable way to prevent it. This could be a valid defence if you have engaged a credible supplier to perform a specific task and have no reason to suspect if would not be carried out legally and compliantly.
While it rarely succeeds, claiming an Act of God or Natural Causes is sometimes a possibility. If it could be proven that a natural, unforeseeable event like a flash flood, lightning strike or landslide caused the environmental damage, this could be accepted. However, it could only be accepted if your lawyer can prove the event was truly unforeseeable and outside human control which is by no means easy.
Depending on the type of environmental crime involved, it can be more sensible to mount a procedural or legal defence. You can challenge the allegation on legal or procedural grounds such as improper investigation by the regulators, a defective enforcement notice, invalid permit conditions or improper sampling or lab analysis. This would almost certainly require supporting evidence from recognised experts.
Whichever defensive option is open to you it is always best practice to engage a specialist lawyer as early as possible. Not only will they be able to talk you through the various options and, more importantly, which are legally supportable in your specific circumstances, they will also be able to help you gather the required evidence and expert reports to support your defence.
As specialists, they should also be able to help you engage and negotiate with regulators in the right way and, if it’s appropriate, help you move toward a negotiated settlements rather than having to go through the courts.
If you or a client has been impacted by accusations of environmental crime or, more specifically, a strict liability environmental offence, our criminal team can help. Please contact us today to arrange an initial conference with one of our specialists.